[Federal Register Volume 62, Number 57 (Tuesday, March 25, 1997)]
[Proposed Rules]
[Pages 14081-14091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7076]
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GENERAL SERVICES ADMINISTRATION
41 CFR Part 105-60
RIN 3090-AG16
Public Availability of Agency Records and Informational Materials
AGENCY: Office of Management Services and Human Resources, GSA.
ACTION: Proposed rulemaking.
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SUMMARY: The General Services Administration (GSA) is revising its
regulations which implement the Freedom of Information Act (FOIA), to
incorporate changes since publication in 1988 of GSA's last final rule
implementing the FOIA. This rule also issues instructions to current
and former GSA employees concerning the response to subpoenas and other
demands in litigation before judicial and administrative tribunals.
DATES: Comments must be received by April 24, 1997.
ADDRESSES: Comments should be submitted to the Freedom of Information
Officer (CAIR), General Services Administration, 1800 F Street, N.W.,
Washington, DC 20405.
FOR FURTHER INFORMATION CONTACT: Mary Cunningham, GSA Freedom of
Information Act (FOIA) Officer (202-501-3415); or Helen C. Maus, Office
of General Counsel (202-501-1460).
SUPPLEMENTARY INFORMATION: This rule was not submitted to the Office of
Management and Budget pursuant to Executive Order 12866 of September
30, 1993, Regulatory Planning and Review, because it is not a
significant regulatory action as defined in Executive Order 12866. The
GSA has based all administrative decisions underlying this rule on
adequate information concerning the need for and the consequences of
this rule, particularly the subpart which governs responses to
subpoenas and other judicially enforceable demands for material or
information. Specifically, the increase in the number of subpoenas and
other demands to its employees in judicial or administrative
proceedings, particularly in cases in which neither GSA nor the United
States is a party, necessitates detailed and uniform instructions to be
followed by current and former GSA employees.
The Paperwork Reduction Act does not apply because the rule does
not impose information collection requirements which require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
The principles of Executive Order 12988 of February 5, 1996, Civil
Justice Reform, have been incorporated where applicable.
The Administrator certifies that this regulatory amendment will not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. Pursuant to 5 U.S.C. 605(b) this proposed rule is
therefore exempt from the initial and final regulatory flexibility
analyses requirements of sections 603 and 604.
Comprehensive Summary
I. Implementation of the FOIA
These regulations implement the FOIA which codified Pub.L. 89-487
and amended section 3 of the Administrative Procedure Act, formerly 5
U.S.C. 1002 (1964 ed.). These regulations also implement Pub. L. 93-
502, popularly known as the Freedom of Information Act Amendments of
1974, as amended by Pub. L. 99-570, the Freedom of Information Reform
Act of 1986; and Executive Order 12600, Predisclosure Notification
Procedures for Confidential Commercial Information, of June 23, 1987.
The revisions incorporate predisclosure notification procedures for
confidential commercial information. These procedures were published as
a previous proposed rule March 26, 1991. The revisions also:
(a) Update organizational references;
(b) Clarify the definition of available records to include
electronic records;
(c) Revise fees for manual searches by clerical staff from $9 to
$13 per hour or fraction of an hour and for manual searches and review
by professional staff from $18 to $29 per hour or fraction of an hour,
to more accurately reflect the full cost of searches and document
review.
(d) Clarify GSA policy with regard to: (1) reconstructing records
and providing incomplete records; (2) explaining compelling reasons for
denial of access to records; (3) requiring assurance of payment;
(e) Provide instructions on submission of FOIA requests via Telefax
and fee payment by credit card; and
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(f) Extend the time limit for administrative appeal within GSA from
30 to 120 days.
(g) Clarify GSA policy with respect to the availability of records
from other sources which have statutory authority to provide
information to the public at set fees.
(h) Incorporate, as appropriate, policies in Executive Order 12988
of February 5, 1996 on Civil Justice Reform.
II. Response to Demands in Judicial or Administrative Proceedings.
This rule also amends 41 CFR Subpart 105-60.6 which pertains to
production of information pursuant to demands in judicial or
administrative proceedings. Subpart 41 CFR Subpart 105-60.6 is amended
to prescribe instructions and procedures to be followed by current and
former GSA employees with respect to the production and disclosure of
material or information acquired as a result of performance of the
person's official duties or because of the person's official status in
response to judicially enforceable subpoenas or demands in judicial or
administrative proceedings, except demands from the Congress or in
Federal grand jury proceedings. Included are detailed factors to be
considered by Appropriate Authority within the General Services
Administration in determining the Agency's response to a subpoena or
other judicially enforceable demand, including widely acknowledged
areas of privilege which may render disclosure or production
inappropriate. Instructions concerning the appropriate response by
employees and former employees to courts and other authorities are
included.
The rules governing responses to subpoenas and demands in judicial
or administrative proceedings provide instructions and procedures for
employees and former employees regarding the internal operations of the
General Services Administration and is not intended to be relied upon
to create any right or benefit, substantive or procedural, enforceable
at law by a party against the General Services Administration.
(a) GSA is amending this subpart to set forth uniform prescribed
instructions and procedures to be complied with by current and former
GSA employees concerning disclosure or production of agency materials
or information in judicial or administrative proceedings in response to
a judicially enforceable subpoena or demand. These instructions
establish policy, assign responsibilities and prescribe procedures for
responding to demands for GSA materials or testimony of current and
former GSA employees in judicial and administrative proceedings. The
instructions in 41 CFR Subpart 105-60.6 do not apply to requests
unrelated to litigation before judicial or administrative tribunals, to
requests made pursuant to the FOIA or Privacy Act, 5 U.S.C. 552 and
552a, respectively, to demands from the Congress, or to demands in
Federal grand jury proceedings.
(b) These instructions are intended to solely provide an orderly
means by which current and former GSA employees respond to demands for
material and information covered by this rule, and to protect the
interests of the United States, including the safeguarding of
privileged or otherwise sensitive information. This rule is consistent
with the decision in the landmark case of United States ex rel. Touhy
v. Ragen, 340 U.S. 462 (1951) in which the Supreme Court upheld the
ability of an agency head to issue regulations for the preservation of
agency records, determined that an agency employee, acting pursuant to
such instructions, could not be held in contempt of court for declining
to produce records in response to a subpoena duces tecum. Accordingly,
current and former GSA employees shall respond to the party on whose
behalf the demand is issued only in accordance with the instructions
and procedures required by 41 CFR Subpart 105-60.6. Furthermore, the
GSA can refuse to disclose materials or make information available
based on the factors set forth in 41 CFR 105-60.605. These instructions
and procedures are not intended to preclude disclosures or productions
in compliance with Court orders except where disclosure would be
inappropriate even if required by a court, e.g., where disclosure would
be legally prohibited or would be contrary to a recognized privilege.
List of Subjects in 41 CFR Part 105-60
Freedom of information.
For the reasons set out in the preamble, 41 CFR Part 105-60 is
proposed to be revised to read as follows:
PART 105-60--PUBLIC AVAILABILITY OF AGENCY RECORDS AND
INFORMATIONAL MATERIALS
Sec.
105-60.000 Scope of part.
Subpart 105-60.1--General Provisions
105-60.101 Purpose.
105-60.102 Application.
105-60.103 Policy.
105-60.103-1 Availability of records.
105-60.103-2 Applying exemptions.
105-60.104 Records of other agencies.
Subpart 105-60.2--Publication of General Agency Information and Rules
in the Federal Register
105-60.201 Published information and rules.
105-60.202 Published materials available for sale to the public.
Subpart 105-60.3--Availability of Opinions, Orders, Policies,
Interpretations, Manuals, and Instructions
105-60.301 General.
105-60.302 Available materials.
105-60.303 Rules for public inspection and copying.
105-60.304 Index.
105-60.305 Fees.
105-60.305-1 Definitions.
105-60.305-2 Scope of section.
105-60.305-3 GSA records available without charge.
105-60.305-4 GSA records available at a fee.
105-60.305-5 Searches.
105-60.305-6 Reviews.
105-60.305-7 Assurance of payment.
105-60.305-8 Prepayment of fees.
105-60.305-9 Form of payment.
105-60.305-10 Fee schedule.
105-60.305-11 Fees for authenticated and attested copies.
105-60.305-12 Administrative actions to improve assessment and
collection of fees.
105-60.305-13 Waiver of fee.
Subpart 105-60.4--Described Records
105-60.401 General.
105-60.402 Procedures for making records available.
105-60.402-1 Submission of requests.
105-60.402-2 Response to initial requests.
105-60.403 Appeal within GSA.
105-60.404 Extension of time limits.
105-60.405 Processing requests for confidential commercial
information.
Subpart 105-60.5--Exemptions
105-60.501 Categories of records exempt from disclosure under the
FOIA.
Subpart 105-60.6--Production or Disclosure by Present or Former General
Services Administration Employees in Response to Subpoenas or Similar
Demands in Judicial or Administrative Proceedings
105-60.601 Purpose and scope of subpart.
105-60.602 Definitions.
105-60.603 Acceptance of service of a subpoena duces tecum or other
legal demand on behalf of the General Services Administration.
105-60.604 Production or disclosure prohibited unless approved by
the Appropriate Authority.
105-60.605 Procedure in the event of a demand for production or
disclosure.
105-60.606 Procedure where response to demand is required prior to
receiving instructions.
105-60.607 Procedure in the event of an adverse ruling.
105-60.608 Fees, expenses, and costs.
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Authority: 5 U.S.C. 301 and 552; 40 U.S.C. 486(c).
Sec. 105-60.000 Scope of part.
(a) This part sets forth policies and procedures of the General
Services Administration (GSA) regarding public access to records
documenting:
(1) Agency organization, functions, decisionmaking channels, and
rules and regulations of general applicability;
(2) Agency final opinions and orders, including policy statements
and staff manuals;
(3) Operational and other appropriate agency records; and
(4) Agency proceedings.
(b) This part also covers exemptions from disclosure of these
records; procedures for the public to inspect or obtain copies of GSA
records; and instructions to current and former GSA employees on the
response to a subpoena or other legal demand for material or
information received or generated in the performance of official duty
or because of the person's official status.
(c) Any policies and procedures in any GSA internal or external
directive inconsistent with the policies and procedures set forth in
this part are superseded to the extent of that inconsistency.
Subpart 105-60.1--General Provisions
Sec. 105-60.101 Purpose.
This part 105-60 implements the provisions of the Freedom of
Information Act (FOIA), as amended, 5 U.S.C. 552. The regulations in
this part also implement Executive Order 12600, Predisclosure
Notification Procedures for Confidential Commercial Information, of
June 23, 1987 (3 CFR, 1987 Comp., p. 235). This part prescribes
procedures by which the public may inspect and obtain copies of GSA
records under the FOIA, including administrative procedures which must
be exhausted before a requester invokes the jurisdiction of an
appropriate United States District Court for GSA's failure to respond
to a proper request within the statutory time limits, for a denial of
agency records or challenge to the adequacy of a search, or for a
denial of a fee waiver.
Sec. 105-60.102 Application.
This part applies to all records and informational materials
generated, maintained, and controlled by GSA that come within the scope
of 5 U.S.C. 552.
Sec. 105-60.103 Policy.
Sec. 105-60.103-1 Availability of records.
The policies of GSA with regard to the availability of records to
the public are:
(a) GSA records are available to the greatest extent possible in
keeping with the spirit and intent of the FOIA. GSA will disclose
information in any existing GSA record, with noted exceptions,
regardless of the form or format of the record. For example, records
maintained in an electronic form, as part of a data base, will be
provided on request using existing programming. GSA will provide the
record in the form or format requested if the record is readily
reproducible by the agency in that form or format. GSA will make
reasonable efforts to maintain its records in forms or formats that are
reproducible for purposes of this section.
(b) The person making the request does not need to demonstrate an
interest in the records or justify the request.
(c) The FOIA does not give the public the right to demand that GSA
compile a record that does not already exist. For example, FOIA does
not require GSA to collect and compile information from multiple
sources to create a new record or develop a new computer program to
extract requested records. GSA will compile records or perform minor
reprogramming when doing so is not costly or burdensome.
(d) Similarly, FOIA does not require GSA to reconstruct records
that have been destroyed in compliance with disposition schedules
approved by the Archivist of the United States. However, GSA will not
destroy records after a member of the public has requested access to
them and will process the request even if destruction would otherwise
be authorized.
(e) If the record requested is not complete at the time of the
request, GSA may, at its discretion, inform the requester that the
complete record will be provided when it is available, with no
additional request required, if the record is not exempt from
disclosure.
(f) Requests must be addressed to the office identified in
Sec. 105-60.402-1.
(g) Fees for locating and duplicating records are listed in
Sec. 105-60.305-10.
Sec. 105-60.103-2 Applying exemptions.
GSA may deny a request for a GSA record if it falls within an
exemption under the FOIA outlined in subpart 105-60.5 of this part.
Except when a record is classified or when disclosure would violate any
Federal statute, the authority to withhold a record from disclosure is
permissive rather than mandatory. GSA will not withhold a record unless
there is a compelling reason to do so; i.e., disclosure will likely
cause harm to a Governmental or private interest. In the absence of a
compelling reason, GSA will disclose a record even if it otherwise is
subject to exemption. GSA will cite the compelling reason(s) to
requesters when any record is denied under FOIA.
Sec. 105-60.104 Records of other agencies.
If GSA receives a request for access to records that are known to
be the primary responsibility of another agency, GSA will refer the
request to the agency concerned for appropriate action. For example,
GSA will refer requests to the appropriate agency in cases in which GSA
does not have sufficient knowledge of the action or matter that is the
subject of the requested records to determine whether the records must
be released or may be withheld under one of the exemptions listed in
Sec. 105-60.5. If GSA does not have the requested records, the agency
will attempt to determine whether the requested records exist at
another agency and, if possible, will forward the request to that
agency. GSA will inform the requester that GSA has forwarded the
request to another agency.
Subpart 105-60.2--Publication of General Agency Information and
Rules in the Federal Register
Sec. 105-60.201 Published information and rules.
In accordance with 5 U.S.C. 552(a)(1), GSA publishes in the Federal
Register, for the guidance of the public, the following general
information concerning GSA:
(a) Description of the organization of the Central Office and
regional offices and the established places at which, the employees
from whom, and the methods whereby, the public may obtain information,
make submittals or requests, or obtain decisions;
(b) Statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available or the
places where forms may be obtained, and instructions on the scope and
contents of all papers, reports, or examinations;
(d) Substantive rules of general applicability adopted as
authorized by law, and statements of general policy or interpretations
of general applicability formulated and adopted by GSA; and
(e) Each amendment, revision, or repeal of the materials described
in this section.
Sec. 105-60.202 Published materials available for sale to the public.
(a) Substantive rules of general applicability adopted by GSA as
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authorized by law which this agency publishes in the Federal Register
and which are available for sale to the public by the Superintendent of
Documents at pre-established prices are: The General Services
Administration Acquisition Regulation (48 CFR Ch. 5), the Federal
Acquisition Regulation (48 CFR Ch. 1), the Federal Property Management
Regulations (41 CFR Ch. 101), and the Federal Travel Regulation (41 CFR
Ch. 301-304).
(b) GSA also provides technical information, including manuals and
handbooks, to other Federal entities, e.g., the National Technical
Information Service, with separate statutory authority to make
information available to the public at pre-established fees.
(c) Requests for information available through the sources in
paragraphs (a) and (b) of this section will be referred to those
sources.
Subpart 105-60.3--Availability of Opinions, Orders, Policies,
Interpretations, Manuals, and Instructions
Sec. 105-60.301 General.
GSA makes available to the public the materials described under 5
U.S.C. 552(a)(2), which are listed in Sec. 105-60.302, at the locations
listed in Sec. 105-60.303. An Index of those materials as described in
Sec. 105-60.304 is available at GSA's Central Office in Washington, DC.
Reasonable copying services are provided at the fees specified in
Sec. 105-60.305.
Sec. 105-60.302 Available materials.
GSA materials available under this Subpart 105-60.3 are as follows:
(a) Final opinions, including concurring and dissenting opinions
and orders, made in the adjudication of cases.
(b) Those statements and policy and interpretations which have been
adopted by GSA and are not published in the Federal Register.
(c) Administrative staff manuals and instructions to staff
affecting a member of the public unless these materials are promptly
published and copies offered for sale.
Sec. 105-60.303 Rules for public inspection and copying.
(a) Locations. Selected areas containing the materials available
for public inspection and copying, described in this section 105-
60.302, are located in the following places:
Central Office (GSA Headquarters)
General Services Administration, Washington, DC., Telephone:
202-501-2974, FAX: 202-501-2727, 18th & F Street, NW (CAIR),
Washington, DC 20405
New England Region
General Services Administration (1AB), (Comprised of the States
of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island,
and Vermont). Thomas P. O'Neill, Jr., Federal Building, 10 Causeway
Street, Boston, MA 02222, Telephone: 617-565-8100, FAX: 617-565-8101
Northeast and Caribbean Region
(Comprised of the States of New Jersey, New York, the
Commonwealth of Puerto Rico, and the Virgin Islands). General
Services Administration (2AR), 26 Federal Plaza, New York, NY 10278,
Telephone: 212-264-1234, FAX: 212-264-2760
Mid-Atlantic Region
(Comprised of the States of Delaware, Maryland, Pennsylvania,
Virginia, and West Virginia, excluding the Washington, D.C.
metropolitan area). General Services Administration (3ADS), 100 Penn
Square East, Philadelphia, PA 19107, Telephone: 215-656-5530, FAX:
215-656-5590
Southeast Sunbelt Region
(Comprised of the States of Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee). General
Services Administration (4E), 401 West Peachtree Street, Atlanta,
GA, 30365, Telephone: 404-331-5103, FAX: 404-331-1813
Great Lakes Region
(Comprised of the States of Illinois, Indiana, Ohio, Minnesota,
Michigan, and Wisconsin). General Services Administration (5ADB),
230 South Dearborn Street, Chicago, IL 60604, Telephone: 312-353-
5383, FAX: 312-353-5385
Heartland Region
(Comprised of the States of Iowa, Kansas, Missouri, and
Nebraska). General Services Administration (6ADB), 1500 East
Bannister Road, Kansas City, MO 64131, Telephone: 816-926-7203, FAX:
816-823-1167
Greater Southwest Region
(Comprised of the States of Arkansas, Louisiana, New Mexico,
Texas, and Oklahoma). General Services Administration (7ADQ), 819
Taylor Street, Fort Worth, TX 76102, Telephone: 817-978-3902, FAX:
817-978-4867
Rocky Mountain Region
(Comprised of the States of Colorado, North Dakota, South
Dakota, Montana, Utah, and Wyoming). Business Service Center,
General Services Administration (8PB-B), Building 41, Denver Federal
Center, Denver, CO 80225, Telephone: 303-236-7408, FAX: 303-236-7403
Pacific Rim Region
(Comprised of the States of Hawaii, California, Nevada, Arizona,
Guam, and Trust Territory of the Pacific). Business Service Center,
General Services Administration (9ADB), 525 Market Street, San
Francisco, CA 94105, Telephone: 415-522-2715, FAX: 415-522-2705
Northwest/Arctic Region
(Comprised of the States of Alaska, Idaho, Oregon, and
Washington). General Services Administration (10L), GSA Center, 15th
and C Streets, SW, Auburn, WA 98002, Telephone: 206-931-7007, FAX:
206-931-7195
National Capital Region
(Comprised of the District of Columbia and the surrounding
metropolitan area). General Services Administration, (WPFA-L), 7th
and D Streets SW, Washington, DC 20407, Telephone: 202-708-5854,
FAX: 202-708-4655
(b) Time. The reading rooms or selected areas will be open to the
public during the business hours of the GSA office where they are
located.
(c) Reading room and selected area rules--(1) Handling of
materials. The removal or mutilation of materials is forbidden by law
and is punishable by fine or imprisonment or both. When requested by a
reading room or selected area attendant, a person inspecting materials
must present for examination any briefcase, handbag, notebook, package,
envelope, book or other article that could contain GSA informational
materials.
(2) Reproduction services. The GSA Central Office or the Regional
Business Service Centers will furnish reasonable copying and
reproduction services for available materials at the fees specified in
Sec. 105-60.305.
Sec. 105-60.304 Index.
GSA will make available to any member of the public who requests it
a current index identifying information for the public regarding any
matter described in Sec. 105-60.302.
Sec. 105-60.305 Fees.
Sec. 105-60.305-1 Definitions.
For the purpose of this part:
(a) A statute specifically providing for setting the level of fees
for particular types of records (5 U.S.C. 552(a)(4)(A)(vii)) means any
statute that specifically requires a Government agency to set the level
of fees for particular types of records, as opposed to a statute that
generally discusses such fees. Fees are required by statute to:
(1) Make Government information conveniently available to the
public and to private sector organizations;
(2) Ensure that groups and individuals pay the cost of publications
and other services which are for their special use so that these costs
are not borne by the general taxpaying public;
(3) Operate an information dissemination activity on self-
sustaining basis to the maximum extent possible; or
(4) Return revenue to the Treasury for defraying, wholly or in
part,
[[Page 14085]]
appropriated funds used to pay the cost of disseminating Government
information.
(b) The term direct costs means those expenditures which GSA
actually incurs in searching for and duplicating (and in the case of
commercial requesters, reviewing and redacting) documents to respond to
a FOIA request. Direct costs include, for example, the salary of the
employee performing the work (the basic rate of pay for the employee
plus 16 percent of that rate to cover benefits), and the cost of
operating duplicating machinery. Overhead expenses such as costs of
space, and heating or lighting the facility where the records are
stored are not included in direct costs.
(c) The term search includes all time spent looking for material
that is responsive to a request, including line-by-line identification
of material within documents. Searches will be performed in the most
efficient and least expensive manner so as to minimize costs for both
the agency and the requester. Line-by-line searches will not be
undertaken when it would be more efficient to duplicate the entire
document. ``Search'' for responsive material is not the same as
``review'' of a record to determine whether it is exempt from
disclosure in whole or in part (see subparagraph e, below). Searches
may be done manually or by computer using existing programming.
(d) The term duplication means the process of making a copy of a
document in response to an FOIA request. Copies can take the form of
paper, microform, audiovisual materials, or magnetic tapes or disks.
GSA will provide a copy of the material in a form that is usable by the
requester unless it is administratively burdensome to do so.
(e) The term review means the process of examining documents
located in response to a request to determine if any portion of that
document is permitted to be withheld and processing any documents for
disclosure. See Sec. 105-60.305-6.
(f) The term commercial-use request means a request from or on
behalf of one who seeks information for a use or purpose that furthers
the commercial, trade, or profit interests of the requester or person
on whose behalf the request is made. GSA will determine whether a
requester properly belongs in this category by determining how the
requester will use the documents.
(g) The term educational institution means a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education which operates a program or programs of scholarly research.
(h) The term noncommercial scientific institution means an
institution that is not operated on a ``commercial'' basis as that term
is used in paragraph (f) of this section and which is operated solely
for the purpose of conducting scientific research the results of which
are not intended to promote any particular product or industry.
(i) The term representative of the news media means any person
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public. The term ``news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media include television or
radio stations broadcasting to the public at large, and publishers of
periodicals (but only in those instances when they can qualify as
disseminators of ``news'') who make their products available for
purchase or subscription by the general public. ``Freelance''
journalists will be regarded as working for a news organization if they
can demonstrate a solid basis for expecting publication through that
organization even though they are not actually employed by it.
Sec. 105-60.305-2 Scope of this subpart.
This subpart sets forth policies and procedures to be followed in
the assessment and collection of fees from a requester for the search,
review, and reproduction of GSA records.
Sec. 105-60.305-3 GSA records available without charge.
GSA records available to the public are displayed in the Business
Service Center for each GSA region. The address and phone number of the
Business Service Centers are listed in Sec. 105-60.303. Certain
material related to bids (excluding construction plans and
specifications) and any material displayed are available without charge
upon request.
Sec. 105-60.305-4 GSA records available at a fee.
(a) GSA will make a record not subject to exemption available at a
time and place mutually agreed upon by GSA and the requester at fees
shown in Sec. 105-60.305-10. Waivers of these fees are available under
the conditions described in Sec. 105-60.305-13. GSA will agree to:
(1) Show the originals to the requester;
(2) Make one copy available at a fee; or
(3) A combination of these alternatives.
(b) GSA will make copies of voluminous records as quickly as
possible. GSA will make a reasonable number of additional copies for a
fee when commercial reproduction services are not available to the
requester.
Sec. 105-60.305-5 Searches.
(a) GSA may charge for the time spent in the following activities
in determining ``search time'' subject to applicable fees as provided
in Sec. 105-60.305-10:
(1) Time spent in trying to locate GSA records which come within
the scope of the request;
(2) Time spent in either transporting a necessary agency searcher
to a place of record storage, or in transporting records to the
locations of a necessary agency searcher; and
(3) Direct costs of the use of computer time to locate and extract
requested records.
(b) GSA will not charge for the time spent in monitoring a
requester's inspection of disclosed agency records.
(c) GSA may assess fees for search time even if the search proves
unsuccessful or if the records located are exempt from disclosure.
Sec. 105-60.305-6 Reviews.
(a) GSA will charge only commercial-use requesters for review time.
(b) GSA will charge for the time spent in the following activities
in determining ``review time'' subject to applicable fees as provided
in Sec. 105-60.305-10:
(1) Time spent in examining a requested record to determine whether
any or all of the record is exempt from disclosure, including time
spent consulting with submitters of requested information; and
(2) Time spent in deleting exempt matter being withheld from
records otherwise made available.
(c) GSA will not charge for:
(1) Time spent in resolving issues of law or policy regarding the
application of exemptions; or
(2) Review at the administrative appeal level of an exemption
already applied. However, records or portions of records withheld in
full under an exemption which is subsequently determined not to apply
may be reviewed again to determine the applicability of other
exemptions not previously considered. GSA will charge for such
subsequent review.
Sec. 105-60.305-7 Assurance of payment.
If fees for search, review, and reproduction will exceed $25 but
will be less than $250, the requester must provide written assurance of
payment
[[Page 14086]]
before GSA will process the request. If this assurance is not included
in the initial request, GSA will notify the requester that assurance of
payment is required before the request is processed. GSA will offer
requesters an opportunity to modify the request to reduce the fee.
Sec. 105-60.305-8 Prepayment of fees.
(a) Fees over $250. GSA will require prepayment of fees for search,
review, and reproduction which are likely to exceed $250. When the
anticipated total fee exceeds $250, the requester will receive notice
to prepay and at the same time will be given an opportunity to modify
his or her request to reduce the fee. When fees will exceed $250, GSA
will notify the requester that it will not start processing a request
until payment is received.
(b) Delinquent payments. As noted in Sec. 105-60.305-12(d),
requesters who are delinquent in paying for previous requests will be
required to repay the old debt and to prepay for any subsequent
request. GSA will inform the requester that it will process no
additional requests until all fees are paid.
Sec. 105-60.305-9 Form of payment.
Requesters should pay fees by check or money order made out to the
General Services Administration and addressed to the official named by
GSA in its correspondence. Payment may also be made by means of
Mastercard or Visa. For information concerning payment by credit cards,
call 816-926-7551.
Sec. 105-60.305-10 Fee schedule.
(a) When GSA is aware that documents responsive to a request are
maintained for distribution by an agency operating a statutory fee
based program, GSA will inform the requester of the procedures for
obtaining records from those sources.
(b) GSA will consider only the following costs in fees charged to
requesters of GSA records:
(1) Review and search fees.
Manual searches by clerical staff: $13 per hour or fraction of
an hour.
Manual searches and reviews by professional staff in cases in
which clerical staff would be unable to locate the requested
records: $29 per hour or fraction of an hour.
Computer searches: Direct cost to GSA.
Transportation or special handling of records: Direct cost to
GSA.
(2) Reproduction fees.
Pages no larger than 8\1/2\ by 14 inches, when reproduced by
routine electrostatic copying: $0.10 per page.
Pages over 8\1/2\ by 14 inches: Direct cost of reproduction to
GSA.
Pages requiring reduction, enlargement, or other special
services: Direct cost of reproduction to GSA.
Reproduction by other than routine electrostatic copying: Direct
cost of reproduction to GSA.
(c) Any fees not provided for under paragraph (b) of this section,
shall be calculated as direct costs, in accordance with Sec. 105-
60.305-1(b).
(d) GSA will assess fees based on the category of the requester as
defined in Sec. 105-60.305-1(f)-(i); i.e., commercial-use, educational
and noncommercial scientific institutions, news media, and all other.
The fees listed in paragraph (b) of this section apply with the
following exceptions:
(1) GSA will not charge the requester if the fee is $25 or less as
the cost of collection is greater than the fee.
(2) Educational and noncommercial scientific institutions and the
news media will be charged for the cost of reproduction alone. These
requesters are entitled to the first 100 pages (paper copies) of
duplication at no cost. The following are examples of how these fees
are calculated:
(i) A request that results in 150 pages of material. No fee would
be assessed for duplication of 150 pages. The reason is that these
requesters are entitled to the first 100 pages at no charge. The charge
for the remaining 50 pages would be $7.50. This amount would not be
billed under the preceding section.
(ii) A request that results in 450 pages of material. The requester
in this case would be charged $35.00. The reason is that the requester
is entitled to the first 100 pages at no charge. The charge for the
remaining 350 pages would be $35.
(3) Noncommercial requesters who are not included under paragraph
(d)(2) of this section, will be entitled to the first 100 pages (paper
copies) of duplication at no cost and 2 hours of search without charge.
The term ``search time'' generally refers to manual search. To apply
this term to searches made by computer, GSA will determine the hourly
cost of operating the central processing unit and the operator's hourly
salary plus 16 percent. When the cost of search (including the operator
time and the cost of operating the computer to process a request)
reaches the equivalent dollar amount of two hours of the salary of the
person performing a manual search, i.e., the operator, GSA will begin
assessing charges for computer search.
(4) GSA will charge commercial-use requesters fees which recover
the full direct costs of searching for, reviewing for release, and
duplicating the records sought. Commercial-use requesters are not
entitled to 2 hours of free search time.
(e) Determining category of requester. GSA may ask any requester to
provide additional information at any time to determine what fee
category he or she falls under.
Sec. 105-60.305-11 Fees for authenticated and attested copies.
The fees set forth in Sec. 105-60.305-10 apply to requests for
authenticated and attested copies of GSA records.
Sec. 105-60.305-12 Administrative actions to improve assessment and
collection of fees.
(a) Charging interest. GSA may charge requesters who fail to pay
fees interest on the amount billed starting on the 31st day following
the day on which the billing was sent. Interest will be at the rate
prescribed in 31 U.S.C. 3717.
(b) Effect of the Debt Collection Act of 1982. GSA will take any
action authorized by the Debt Collection Act of 1982 (Pub. L. 97-365,
96 Stat. 1749), including disclosure to consumer reporting agencies,
use of collection agencies, and assessment of penalties and
administrative costs, where appropriate, to encourage payment.
(c) Aggregating requests. When the GSA reasonably believes that a
requester, or group of requesters acting in concert, is attempting to
break down a request into a series of requests related to the same
subject for the purpose of evading the assessment of fees, GSA will
combine any such requests and charge accordingly, including fees for
previous requests where charges were not assessed. GSA will presume
that multiple requests of this type within a 30-day period are made to
avoid fees.
(d) Advance payments. Whenever a requester is delinquent in paying
the fee for a previous request (i.e., within 30 days of the date of the
billing), GSA will require the requester to pay the full amount owed
plus any applicable interest penalties and administrative costs as
provided in paragraph (a) of this section or to demonstrate that he or
she has, in fact, paid the fee. In such cases, GSA will also require
advance payment of the full amount of the estimated fee before the
agency begins to process a new request or a pending request from that
requester. When advance payment is required under this section, the
administrative time limits in subsection (a)(6) of the FOIA (i.e., 10
working days from receipt of appeals from initial denial plus
permissible time extensions) will begin only after GSA has received the
fee payments described in Sec. 105-60.305-8.
[[Page 14087]]
Sec. 105-60.305-13 Waiver of fee.
(a) Any request for waiver or reduction of a fee should be included
in the initial letter requesting access to GSA records under Sec. 105-
60.402-1. The waiver request should explain how disclosure of the
information would contribute significantly to public understanding of
the operations or activities of the Government and would not be
primarily in the commercial interest of the requester. In responding to
a request, GSA will consider the following factors:
(1) Whether the subject of the requested records concerns ``the
operations or activities of the Government.'' The subject matter of the
requested records must specifically concern identifiable operations or
activities of the Federal Government. The connection between the
records and the operations or activities must be direct and clear, not
remote or attenuated.
(2) Whether the disclosure is ``likely to contribute'' to an
understanding of Government operations or activities. In this
connection, GSA will consider whether the requested information is
already in the public domain. If it is, then disclosure of the
information would not be likely to contribute to an understanding of
Government operations or activities, as nothing new would be added to
the public record.
(3) Whether disclosure of the requested information will contribute
to ``public understanding.'' The focus here must be on the contribution
to public understanding rather than personal benefit to be derived by
the requester. For purposes of this analysis, the identity and
qualifications of the requester should be considered, to determine
whether the requester is in a position to contribute to public
understanding through the requested disclosure.
(4) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and if so: Whether the magnitude
of the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is ``primarily in the commercial interest of the
requester.''
(b) GSA will ask the requester to furnish additional information if
the initial request is insufficient to evaluate the merits of the
request. GSA will not start processing a request until the fee waiver
issue has been resolved unless the requester has provided written
assurance of payment in full if the fee waiver is denied by the agency.
Subpart 105-60.4--Described Records
Sec. 105-60.401 General.
(a) Except for records made available in accordance with Subparts
105-60.2 and 105-60.3 of this part, GSA will make records available to
a requester promptly when the request reasonably describes the records
unless GSA invokes an exemption in accordance with Subpart 105-60.5 of
this part. Although the burden of reasonable description of the records
rests with the requester, whenever practical GSA will assist requesters
to describe records more specifically.
(b) Whenever a request does not reasonably describe the records
requested, GSA may contact the requester to seek a more specific
description. The 10-workday time limit set forth in Sec. 105-60.402-2
will not start until the official identified in Sec. 105-60.402-1 or
other responding official receives a request reasonably describing the
records.
Sec. 105-60.402 Procedures for making records available.
This subpart sets forth initial procedures for making records
available when they are requested, including administrative procedures
to be exhausted prior to seeking judicial review by an appropriate
United States District Court.
Sec. 105-60.402-1 Submission of requests.
For records located in the GSA Central Office, the requester must
submit a request in writing to the GSA FOIA Officer, General Services
Administration (CAIR), Washington, DC 20405. Requesters may FAX
requests to (202) 501-2727. For records located in the GSA regional
offices, the requester must submit a request to the FOIA Officer for
the relevant region, at the address listed in Sec. 105-60.303(a).
Requests should include the words ``Freedom of Information Act
Request'' prominently marked on both the face of the request letter and
the envelope. The 10-workday time limit for agency decisions set forth
in Sec. 105-60.402-2 begins with receipt of a request in the office of
the official identified in this section, unless the provisions under
Secs. 105-60.305-8 and 105-60.305-12(d) apply. Failure to include the
words ``Freedom of Information Act Request'' or to submit a request to
the official identified in this section will result in processing
delays. A requester with questions concerning a FOIA request should
contact the GSA FOIA Office, General Services Administration (CAIR),
18th and F Streets, NW., Washington, DC 20405, (202) 501-2691.
Sec. 105-60.402-2 Response to initial requests.
GSA will respond to an initial FOIA request which reasonably
describes requested records, including a fee waiver request, within 10
workdays (that is, excluding Saturdays, Sundays, and legal holidays)
after receipt of a request by the office of the appropriate official
specified in Sec. 105-60.402-1. This letter will provide the agency's
decision with respect to disclosure or nondisclosure of the requested
records, or, if appropriate, a decision on a request for a fee waiver.
If the records to be disclosed are not provided with the initial
letter, the records will be sent as soon as possible thereafter. In
unusual circumstances, as described in Sec. 105-60.404, GSA will inform
the requester of the agency's need to take an extension of time, not to
exceed an additional 10 workdays.
Sec. 105-60.403 Appeal within GSA.
(a) A requester who receives a denial of a request, in whole or in
part, or a denial of a fee waiver request, may appeal that decision
within GSA. A requester may also appeal the adequacy of the search if
GSA determines that it has searched for but has no requested records.
The requester must send the appeal to the GSA FOIA Officer, General
Services Administration (CAIR), Washington, DC 20405, regardless of
whether the denial being appealed was made in the Central Office or in
a regional office.
(b) The GSA FOIA Officer must receive an appeal no later than 120
calendar days after receipt by the requester of the initial denial of
access or fee waiver.
(c) An appeal must be in writing and include a brief statement of
the reasons he or she thinks GSA should release the records and enclose
copies of the initial request and denial. The appeal letter must
include the words ``Freedom of Information Act Appeal'' on both the
face of the appeal letter and on the envelope. Failure to follow these
procedures will delay processing of the appeal. GSA has 20 workdays
after receipt of an proper appeal to issue a determination with respect
to the appeal. The 20-workday time limit shall not begin until the GSA
FOIA Officer receives the appeal. As noted in Sec. 105-60.404, the GSA
FOIA Officer may extend this time limit in unusual circumstances.
(d) A requester who receives a denial of an appeal, or who has not
received a response to an appeal or initial request within the
statutory time frame may seek judicial review in the United States
District Court in the district in which
[[Page 14088]]
the requester resides or has a principal place of business, or where
the records are situated, or in the United States District Court for
the District of Columbia.
Sec. 105-60.404 Extension of time limits.
(a) In unusual circumstances, the GSA FOIA Officer or the regional
FOIA Officer may extend the time limits prescribed in Secs. 105-60.402
and 105-60.403. For purposes of this section, the term ``unusual
circumstances'' means:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are described
in a single request;
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of GSA
having substantial subject-matter interest therein; or
(4) The need to consult with the submitter of the requested
information.
(b) If necessary, GSA may take more than one extension of time.
However, the total extension of time to respond to any single request
shall not exceed 10 workdays. The extension may be divided between the
initial and appeal stages or within a single stage. GSA will provide
written notice to the requester of any extension of time limits.
Sec. 105-60.405 Processing requests for confidential commercial
information.
(a) General. The following additional procedures apply when
processing requests for confidential commercial information.
(b) Definitions. For the purposes of this section, the following
definitions apply:
(1) Confidential commercial information means records provided to
the Government by a submitter that contain material arguably exempt
from release under 5 U.S.C. 552(b)(4), because disclosure could
reasonably be expected to cause substantial competitive harm.
(2) Submitter means a person or entity which provides to the
Government information which may constitute confidential commercial
information. The term submitter includes, but is not limited to,
individuals, partnerships, corporations, State governments, and foreign
governments.
(c) Designating confidential commercial information. After January
1, 1988, submitters must designate confidential commercial information
as such when it is submitted to GSA or at a reasonable time thereafter.
For information submitted in connection with negotiated procurements,
the requirements of 48 CFR 15.407(c)(8) and 52.215-12 also apply.
(d) Procedural requirements--consultation with the submitter.
(1) If GSA receives a FOIA request for potentially confidential
commercial information, it will notify the submitter immediately by
telephone and invite an opinion whether disclosure will or will not
cause substantial competitive harm.
(2) GSA will follow up the telephonic notice promptly in writing
before releasing any records unless paragraph (f) of this section
applies.
(3) If the submitter indicates an objection to disclosure GSA will
give the submitter 7 workdays from receipt of the letter to provide GSA
with a detailed written explanation of how disclosure of any specified
portion of the records would be competitively harmful.
(4) If the submitter verbally states that there is no objection to
disclosure, GSA will confirm this fact in writing before disclosing any
records.
(5) At the same time GSA notifies the submitter, it will also
advise the requester that there will be a delay in responding to the
request due to the need to consult with the submitter.
(6) GSA will review the reasons for nondisclosure before
independently deciding whether the information must be released or
should be withheld. If GSA decides to release the requested
information, it will provide the submitter with a written statement
explaining why his or her objections are not sustained. The letter to
the submitter will contain a copy of the material to be disclosed or
will offer the submitter an opportunity to review the material in one
of GSA's offices. If GSA decides not to release the material, it will
notify the submitter orally or in writing.
(7) If GSA determines to disclose information over a submitter's
objections, it will inform the submitter that GSA will delay disclosure
for 5 workdays from the estimated date the submitter receives GSA's
decision before it releases the information. The decision letter to the
requester shall state that GSA will delay disclosure of material it has
determined to disclose to allow for the notification of the submitter.
(e) When notice is required.
(1) For confidential commercial information submitted prior to
January 1, 1988, GSA will notify a submitter whenever it receives a
FOIA request for such information:
(i) If the records are less than 10 years old and the information
has been designated by the submitter as confidential commercial
information; or
(ii) If GSA has reason to believe that disclosure of the
information could reasonably be expected to cause substantial
competitive harm.
(2) For confidential commercial information submitted on or after
January 1, 1988, GSA will notify a submitter whenever it determines
that the agency may be required to disclose records:
(i) That the submitter has previously designated as privileged or
confidential; or
(ii) That GSA believes could reasonably be expected to cause
substantial competitive harm if disclosed.
(3) GSA will provide notice to a submitter for a period of up to 10
years after the date of submission.
(f) When notice is not required. The notice requirements of this
section will not apply if:
(1) GSA determines that the information should not be disclosed;
(2) The information has been published or has been officially made
available to the public;
(3) Disclosure of the information is required by law other than the
FOIA;
(4) Disclosure is required by an agency rule that--
(i) Was adopted pursuant to notice and public comment;
(ii) Specifies narrow classes of records submitted to the agency
that are to be released under FOIA; and
(iii) Provides in exceptional circumstances for notice when the
submitter provides written justification, at the time the information
is submitted or a reasonable time thereafter, that disclosure of the
information could reasonably be expected to cause substantial
competitive harm;
(5) The information is not designated by the submitter as exempt
from disclosure under paragraph (c) of this section, unless GSA has
substantial reason to believe that disclosure of the information would
be competitively harmful; or
(6) The designation made by the submitter in accordance with
paragraph (c) of this section appears obviously frivolous; except that,
in such cases, the agency must provide the submitter with written
notice of any final administrative decision 5 workdays prior to
disclosing the information.
(g) Lawsuits. If a FOIA requester sues the agency to compel
disclosure of confidential commercial information,
[[Page 14089]]
GSA will notify the submitter as soon as possible. If the submitter
sues GSA to enjoin disclosure of the records, GSA will notify the
requester.
Subpart 105-60.5--Exemptions
Sec. 105-60.501 Categories of records exempt from disclosure under the
FOIA.
(a) 5 U.S.C. 552(b) provides that the requirements of the FOIA do
not apply to matters that are:
(1) Specifically authorized under the criteria established by an
Executive order to be kept secret in the interest of national defense
or foreign policy and are in fact properly classified pursuant to such
Executive order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempted from disclosure by statute (other than
section 552b of this title), provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Interagency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(b) GSA will provide any reasonably segregable portion of a record
to a requester after deletion of the portions that are exempt under
this section. If GSA must delete information from a record before
disclosing it, this information, and the reasons for withholding it,
will be clearly described in the cover letter to the requester or in an
attachment.
(c) GSA will invoke no exemption under this section to deny access
to records that would be available pursuant to a request made under the
Privacy Act of 1974 (5 U.S.C. 522a) and implementing regulations, 41
CFR Part 105-64, or if disclosure would cause no demonstrable harm to
any governmental or private interest.
(d) Whenever a request is made which involves access to records
described in Sec. 105-60.501(a)(7)(i) and the investigation or
proceeding involves a possible violation of criminal law, and there is
reason to believe that the subject of the investigation or proceeding
is not aware of it, and disclosure of the existence of the records
could reasonably be expected to interfere with enforcement proceedings,
the agency may, during only such time as that circumstance continues,
treat the records as not subject to the requirements of this section.
(e) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier are
requested by a third party according to the informant's name or
personal identifier, the agency may treat the records as not subject to
the requirements of this section unless the informant's status as an
informant has been officially confirmed.
(f) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to foreign
intelligence or counterintelligence, or international terrorism, and
the existence of the records is classified information as provided in
paragraph (a)(1) of this section, the Bureau may, as long as the
existence of the records remains classified information, treat the
records as not subject to the requirements of this section.
Subpart 105-60.6--Production or Disclosure by Present or Former
General Services Administration Employees in Response to Subpoenas
or Similar Demands in Judicial or Administrative Proceedings
Sec. 105-60.601 Purpose and scope of subpart.
(a) By virtue of the authority vested in the Administrator of
General Services by 5 U.S.C. 301 and 40 U.S.C. 486(c) this subpart
establishes instructions and procedures to be followed by current and
former employees of the General Services Administration in response to
subpoenas or similar demands issued in judicial or administrative
proceedings for production or disclosure of material or information
obtained as part of the performance of a person's official duties or
because of the person's official status. Nothing in these instructions
applies to responses to subpoenas or demands issued by the Congress or
in Federal grand jury proceedings.
(b) This subpart provides instructions regarding the internal
operations of GSA and the conduct of its employees, and is not intended
and does not, and may not, be relied upon to create any right or
benefit, substantive or procedural, enforceable at law by a party
against GSA.
Sec. 105-60.602 Definitions.
For purposes of this subpart, the following definitions apply:
(a) Material means any document, record, file or data, regardless
of the physical form or the media by or through which it is maintained
or recorded, which was generated or acquired by a current or former GSA
employee by reason of the performance of that person's official duties
or because of the person's official status, or any other tangible item,
e.g., personal property possessed or controlled by GSA.
(b) Information means any knowledge or facts contained in material,
and any knowledge or facts acquired by current or former GSA employee
as part of the performance of that person's official duties or because
of that person's official status.
(c) Demand means any subpoena, order, or similar demand for the
production or disclosure of material,
[[Page 14090]]
information or testimony regarding such material or information, issued
by a court or other authority in a judicial or administrative
proceeding, excluding Congressional subpoenas or demands in Federal
grand jury proceedings, and served upon a present or former GSA
employee.
(d) Appropriate Authority means the following officials who are
delegated authority to approve or deny responses to demands for
material, information or testimony:
(1) The Counsel to the Inspector General for material and
information which is the responsibility of the GSA Office of Inspector
General or testimony of current or former employees of the Office of
the Inspector General;
(2) The Counsel to the GSA Board of Contract Appeals for material
and information which is the responsibility of the Board of Contract
Appeals or testimony of current or former Board of Contract Appeals
employees;
(3) The GSA General Counsel, Associate General Counsel(s) or
Regional Counsel for all material, information, or testimony not
covered by paragraphs (d)(1) and (2) of this section.
Sec. 105-60.603 Acceptance of service of a subpoena duces tecum or
other legal demand on behalf of the General Services Administration.
(a) The Administrator of General Services and the following
officials are the only GSA personnel authorized to accept service of a
subpoena or other legal demand on behalf of GSA: the GSA General
Counsel and Associate General Counsel(s) and, with respect to material
or information which is the responsibility of a regional office, the
Regional Administrator and Regional Counsel. The Inspector General and
Counsel to the Inspector General, as well as the Chairman and Vice
Chairman of the Board of Contract Appeals, are authorized to accept
service for material or information which are the responsibility of
their respective organizations.
(b) A present or former GSA employee not authorized to accept
service of a subpoena or other demand for material, information or
testimony obtained in an official capacity shall respectfully inform
the process server that he or she is not authorized to accept service
on behalf of GSA and refer the process server to an appropriate
official listed in paragraph (a) of this section.
(c) A Regional Administrator or Regional Counsel shall notify the
General Counsel of a demand which may raise policy concerns or affect
multiple regions.
Sec. 105-60.604 Production or disclosure prohibited unless approved by
the Appropriate Authority.
No current or former GSA employee shall, in response to a demand,
produce any material or disclose, through testimony or other means, any
information covered by this subpart, without prior approval of the
Appropriate Authority.
Sec. 105-60.605 Procedure in the event of a demand for production or
disclosure.
(a) Whenever service of a demand is attempted in person or via mail
upon a current or former GSA employee for the production of material or
the disclosure of information covered by this subpart the employee or
former employee shall immediately notify the Appropriate Authority
through his or her supervisor or his or her former service, staff
office, or regional office. The supervisor shall notify the Appropriate
Authority. For current or former employees of the Office of Inspector
General located in regional offices, Counsel to the Inspector General
shall be notified through the immediate supervisor or former employing
field office.
(b) The Appropriate Authority shall require that the party seeking
material or testimony provide the Appropriate Authority with an
affidavit, declaration, statement, and/or a plan as described in
paragraphs (c)(1), (2), and (3) of this section if not included with or
described in the demand. The Appropriate Authority may waive this
requirement for a demand arising out of proceedings to which GSA or the
United States is a party. Any waiver will be coordinated with the
United States Department of Justice (DOJ) in proceedings in which GSA,
its current or former employees, or the United States are represented
by DOJ.
(c)(1) Oral testimony. If oral testimony is sought by a demand, the
Appropriate Authority shall require the party seeking the testimony or
the party's attorney to provide, by affidavit or other statement, a
detailed summary of the testimony sought and its relevance to the
proceedings. Any authorization for the testimony of a current or former
GSA employee shall be limited to the scope of the demand as summarized
in such statement or affidavit.
(2) Production of material. When information other than oral
testimony is sought by a demand, the Appropriate Authority shall
require the party seeking production or the party's attorney to provide
a detailed summary, by affidavit or other statement, of the information
sought and its relevance to the proceeding.
(3) The Appropriate Authority may require a plan or other
information from the party seeking testimony or production of material
of all demands reasonably foreseeable, including, but not limited to,
names of all current and former GSA employees from whom testimony or
production is or will likely be sought, areas of inquiry, for current
employees the length of time away from duty anticipated, and
identification of documents to be used in each deposition or other
testimony, where appropriate.
(d) The Appropriate Authority will notify the current or former
employee, the appropriate supervisor, and such other persons as
circumstances may warrant, whether disclosure or production is
authorized, and of any conditions or limitations to disclosure or
production.
(e) Factors to be considered by the Appropriate Authority in
responding to demands:
(1) Whether disclosure or production is appropriate under rules of
procedure governing the proceeding out of which the demand arose;
(2) The relevance of the testimony or documents to the proceedings;
(3) The impact of the relevant substantive law concerning
applicable privileges recognized by statute, common law, judicial
interpretation or similar authority;
(4) The information provided by the issuer of the demand in
response to requests by the Appropriate Authority pursuant to
paragraphs (b) and (c) of this section;
(5) The steps taken by the issuer of the demand to minimize the
burden of disclosure or production on GSA, including but not limited to
willingness to accept authenticated copies of material in lieu of
personal appearance by GSA employees;
(6) The impact on pending or potential litigation involving GSA or
the United States as a party;
(7) In consultation with the head of the GSA organizational
component affected, the burden the GSA which disclosure or production
would entail; and
(8) Any additional factors unique to a particular demand or
proceeding.
(f) The Appropriate Authority shall not approve a disclosure or
production which would:
(1) Violate a statute or a specific regulation;
(2) Reveal classified information, unless appropriately
declassified by the originating agency;
(3) Reveal a confidential source or informant, unless the
investigative
[[Page 14091]]
agency and the source or informant consent;
(4) Reveal records or information compiled for law enforcement
purposes which would interfere with enforcement proceedings or disclose
investigative techniques and procedures the effectiveness of which
would be impaired;
(5) Reveal trade secrets or commercial or financial information
which is privileged or confidential without prior consultation with the
person from whom it was obtained; or
(6) Be contrary to a recognized privilege.
(g) The Appropriate Authority's determination, including any
reasons for denial or limitations on disclosure or production, shall be
made as expeditiously as possible and shall be communicated in writing
to the issuer of the demand and appropriate current or former GSA
employee(s). In proceedings in which GSA, its current or former
employees, or the United States are represented by DOJ the
determination shall be coordinated with DOJ which may respond to the
issuer of the subpoenas or demand in lieu of the Appropriate Authority.
Sec. 105-60.606 Procedure where response to demand is required prior
to receiving instructions.
(a) If a response to a demand is required before the Appropriate
Authority's decision is issued, a GSA attorney designated by the
Appropriate Authority for the purpose shall appear with the employee or
former employee upon whom the demand has been made, and shall furnish
the judicial or other authority with a copy of the instructions
contained in this Subpart. The attorney shall inform the court or other
authority that the demand has been or is being referred for the prompt
consideration by the Appropriate Authority. The attorney shall
respectfully request the judicial or administrative authority to stay
the demand pending receipt of the requested instructions.
(b) The designated GSA attorney shall coordinate GSA's response
with DOJ's Civil Division or the relevant Office of the United States
Attorney and may request that a DOJ or Assistant United States Attorney
appear with the employee in addition to or in lieu of a designated GSA
attorney.
(c) If an immediate demand for production or disclosure is made in
circumstances which preclude the appearance of a GSA or DOJ attorney on
the behalf of the employee or the former employee, the employee or
former employee shall respectfully make a request to the demanding
authority for sufficient time to obtain advice of counsel.
Sec. 105-60.607 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the
demand in response to a request made in accordance with 105-60.606
pending receipt of instructions, or if the court or other authority
rules that the demand must be complied with irrespective of
instructions by the Appropriate Authority not to produce the material
or disclose the information sought, the employee or former employee
upon whom the demand has been made shall respectfully decline to
comply, citing these instructions and the decision of the United States
Supreme Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
Sec. 105-60.608 Fees, expenses, and costs.
(a) In consultation with the Appropriate Authority, a current
employee who appears as a witness pursuant to a demand shall ensure
that he or she receives all fees and expenses, including travel
expenses, to which witnesses are entitled pursuant to rules applicable
to the judicial or administrative proceedings out of which the demand
arose.
(b) Witness fees and reimbursement for expenses received by a GSA
employee shall be disposed of in accordance with rules applicable to
Federal employees in effect at the time.
(c) Reimbursement to the GSA for costs associated with producing
material pursuant to a demand shall be determined in accordance with
rules applicable to the proceedings out of which the demand arose.
Dated: March 17, 1997.
Martha N. Johnson,
Associate Administrator for Management Services and Human Resources.
[FR Doc. 97-7076 Filed 3-24-97; 8:45 am]
BILLING CODE 6820-34-P
